Saturday, May 14, 2005

The Judges Speak

Cairo Court of First Instance, 31 December 1933.

In a landmark hours-long meeting on Friday, 13 May, around 3,000 Egyptian judges issued a resounding ultimatum to the executive. If they are not granted complete supervision over elections from A to Z, and a new law guaranteeing full judicial autonomy, judges will withdraw from supervising both the September presidential vote and the November parliamentary poll, refusing to be "false witnesses". Braving tremendous government inducements, oblique threats, and serious skepticism within their own ranks, the extraordinary General Assembly of the Judges Club in Cairo (Nadi al-Quda) echoed the position of the Alexandria judges statement on April 15 threatening to boycott elections if they are robbed of meaningful supervision. The regime has until September to meet the judges’ demands. The battle for democracy has spread within the state, as Egyptian judges reclaim a proud tradition of corporate solidarity and public activism against their longstanding nemesis, the almighty executive.

Update: In a swift counter-attack, The Supreme Judicial Council (Magles al-Qada' al-'Ala) has issued a statement published in Tuesday's al-Ahram (17 May) asserting its sole right to represent judges and claiming that election monitoring is judges' "sacred duty" subject to no conditions. Note that reforming this organ is one of the longstanding demands of the judges, who oppose the president's power to appoint its sitting magistrates. The statement is a fierce attack on the judges' landmark meeting, claiming that the thousands who showed up friday (estimates range from 3,000-5,000) constitute "a minority that does not represent judges." In a dangerous move designed to sideline the intrepid, autonomous, and historic role of the Judges Club, the statement threatens, "The Supreme Judicial Council has decided not to recognise any opinion imputed to judges unless it emanates from the general assemblies of courts or is affixed with their signatures." The problem of course is that such general assemblies are thoroughly controlled by the Ministry of Justice. So let the battles begin. Judges are fed up and outraged enough not to back down. They see this as their last stand for their own professional integrity, and Egyptian citizens will watch with baited breath as the last of the honorable men stand up for our rights. Read the great Mahmoud al-Khodeiri's statement to the friday meeting. "The time has come to end tutelage," he said. Call it the battle cry of the Egyptian people's spring, 2005.

I never anticipated that Friday’s General Assembly would follow through on the actions of the Alexandria faction. Between April 15 and May 13, the executive has been doing its damnedest to persuade the judges to cease and desist. Justice Minister Mahmoud Abu el-Leil (former Giza governor) has been lobbying intensively in the provinces, dangling lucrative carrots and quiet sticks before judges to keep them in the election game. He promised pliant judges an increase in their bonus from £E6,000 to £E12,000, and the heads of the Tanta, Bani Sueif, and Qalyoubiyya judges clubs have caved (though not the general assemblies of these clubs). The credibly clued-in Abdalla al-Sennawi reports that presidential goodwill ambassador Makram Mohamed Ahmad was dispatched to Alexandria to convince judges to go easy on the regime in the parliamentary elections, at which point the intrepid Alexandria Judges Club president Mahmoud al-Khodeiri abruptly ended the meeting.

Three months ago, no one outside Egypt gave a hoot about Egyptian judges, except of course those cloying do-gooders at USAID with their judicial “training” or whatever they call them programs to improve the natives. Now the foreign media has discovered that Egypt has judges, and—gasp!—they’re demanding reform. I won’t be surprised if the American administration and its house intellectuals start to take credit for the judges’ moves, while the Egyptian administration and its scribblers heap calumny on any groups demanding democracy (look no further than Hosni Mubarak’s comical utterances to that purveyor of cutting-edge journalism, the Kuwaiti al-Seyassah). But because there’s nothing uglier than falsifying history for base political ends, let this be a corrective.

Long Train of Abuses

There’s no denying that the general democracy zeitgeist offers a valuable opportunity for judges to stake their claims. But the real reasons we’re seeing judges stand up and deliver today are rooted in Egyptian domestic politics and Egyptian history. This election year, judges are determined not to repeat the travesty of the fall 2000 elections, when they were trapped inside polling stations as government thugs blocked off roads, turned back voters, and bussed in government supporters to make sure the NDP dominates parliament. This rude awakening dovetailed with longstanding tensions between the executive and the judiciary over who controls judicial appointments, salaries, bonuses, and discipline, and the very integrity of the judicial profession. It’s an open secret in Egypt that police officers can easily become judges by taking an accelerated (and predictably bogus) one-year diploma in law. Add to this the increasingly brazen use of fake judicial implements by the Mubarak regime to evade upstanding judges (State Security courts and military tribunals to name just two). Wrap it all up with a high degree of corporate solidarity among Egyptian judges, borne out of previous struggles with the state, etched in a vibrant collective memory and a rich judicial lore. What you get is something like John Locke’s revolutionary situation: “Great mistakes in the ruling part, many wrong and inconvenient Laws, and all the slips of humane frailty will be born by the People, without mutiny or murmur. But if a long train of Abuses, Prevarications, and Artifices, all tending the same way, make the design visible to the People, and they cannot but feel, what they lie under, and see, whither they are going; 'tis not to be wonder'd, that they should then rouze themselves, and endeavour to put the rule into such hands, which may secure to them the ends for which Government was at first erected…”
As with all Egyptian professional groups, judges have their specific grievances and complaints. But unlike such groups, they are also state officials who interact intimately with both members of the public and the highest reaches of officialdom. This paradoxical status is what lends judicial struggle its fascinating aura and influence. They cannot be ignored, easily co-opted, or crushed. Ignore or crush them and the very functioning of the state comes to a halt, especially a vast bureaucracy like Egypt’s where administrative disputes are legion, both between different bureaucratic agencies and between members of the public and the bureaucracy. Co-optation is trickier. Some judges will be very obliging and eager to help the executive (witness the State Security court judges who can be counted on to issue verdicts palatable to the “political leadership”, pathetic code for the president). But most judges throughout Egyptian history have shown themselves to be remarkably impervious and defiant.
Illustrious History

Just two years after the Court of Cassation (Mahkamat al-Naqd) was established in 1931 as the nation’s highest appeals court, it carved for itself a reputation as a defender of citizens’ rights against a pernicious Egyptian tradition: state torture. On 19 March 1932 in the Asyut village of Badari, the district police chief was shot. The two young assailants were tried, convicted of premeditated murder, and one was sentenced to life with hard labor while the other was meted the death penalty. Against all odds, valiant defense attorneys and prominent lawyers Morqos Fahmi and Ibrahim Mumtaz appealed. In 1933, the Court of Cassation, headed by Abdel Aziz Fahmi (one of the companions of Saad Zaghlul in the November 1918 delegation to Sir Reginald Wingate demanding Egyptian independence), overturned the lower criminal court verdict. The Court surmised that the crucial condition of premeditation was absent, due to one of the assailant’s previous and humiliating torture at the hands of the murdered police chief. The emasculating mechanisms of torture in the 1930s could be lifted straight from the gruesome tales we hear today of police stations turned into torture chambers. In one of those endlessly fascinating historical twists, defense lawyers’ major witness was Mohamed Nassar, mayor of Badari, and father of future judicial luminary Mumtaz Nassar.
Two years after its founding in 1946, the State Council (Magles al-Dawla) issued a landmark ruling on February 10, 1948 affirming its right to judicial review, an important prerogative absent from the 1923 constitution. A few years on, Magles al-Dawla emerged as one of the most formidable bulwarks against a corrupt Palace and abusive bureaucracy. It consistently voided wrongful orders of termination or demotion and cancelled administrative orders to shut down newspapers or throw protesting students in jail for “Bolshevism.” One whimsical case became an emblem of Magles al-Dawla’s championing of individual rights: a district police chief’s humiliating order to have the mustache of a subordinate shaven off was resoundingly voided by the administrative courts. As bureaucrats abused their power and ran roughshod over citizens’ rights, the latter flocked to the courts seeking redress.

Judges conferred and socialized with one another in the deceptively patrician-sounding Judges Club, established in 1939 “to strengthen the bond of fraternity and solidarity among all judges, to care for their interests, and to facilitate their meetings,” as its founding charter stated. An explicit goal of the Club was to raise funds to help judges with cost of living issues so that they need not turn to the government and offer it avenues of influence. The government of course deemed the Club too dangerous to let alone, and insisted on having it be monitored and accredited by the Ministry of Social Affairs, a condition that judges have long chafed under and have since been endeavoring to overturn.
Prominent judges-statesmen buoyed public confidence in the courts. President of Magles al-Dawla Abdel Razzaq al-Sanhuri towered above his colleagues, in a few short years turning the embryonic institution into a formidable “fortress of freedoms” (hissn li-l-hurriyaat) as judicial lore dubs it. The first issue of the journal Majallat Magles al-Dawla that he founded and edited is cherished by court judges, its erudite, lucid essays pored over and cited with a reverence reserved for the Qur’an. On March 29, 1954, at the peak of the “March crisis” when a power struggle brewed between Nasser and Naguib and rumors circulated that Sanhuri was about to issue rulings favorable to Naguib, a wild mob was dispatched to attack al-Sanhuri in his deliberation chambers, reportedly with the tacit consent of Gamal Abdel Nasser. They nearly killed him, were it not for a loyal court custodian who threw his body over the judge’s to protect him from the flying chairs and blows. Soon after, 38 leading politicians of the pre-1952 regime had their political rights confiscated for 10 years. Thus ended Sanhuri’s long and textured public service.
Presidents and Magistrates

That 1954 incident is remembered as the “sinful attack” (al-i’tidaa’ al-athem) in judicial lore, and constitutes the first salvo in judges’ quiet war to regain their autonomy from a hungry executive. Between 1954 and 1969, the Nasser regime engaged in a bitter struggle to rein in Egyptian courts and their wildcard overseers, using a clever menu of manipulation and machination designed by wily legal tailors (many of them former judges drafted into the executive). The next incident came in 1968, when judges joined students and workers in expressing their outrage at the lack of democracy and attendant military defeat at the hands of Israel. In another landmark Judges Club meeting, on March 28, 1968, steered by president Mumtaz Nassar and vice president Yahya al-Refai, Egyptian judges unanimously agreed to issue a statement that has since assumed an exalted place in the pantheon of pro-democracy ephemera in Egyptian history. As Nassar proudly reminisces in his memoirs, the statement received a 15-minute standing ovation from the club’s General Assembly. It reads in part, “There is no doubt that the strength of the domestic front requires above all removing all the obstacles placed by pre-1967 conditions in the way of citizens’ freedom…Individual liberty in expression and assembly must be ensured for every citizen, to participate via criticism, dialogue, and proposals, to feel responsible for and capable of free expression. This cannot come to pass without asserting the principle of legality, which means in the first instance providing freedoms to citizens and the rule of law over rulers and ruled alike.”

Interior Minister Sha’rawi Gom’a was livid that the judges spurned his multiple entreaties and pleas to delay the statement, and their earlier stubborn and collective refusal to join the single-party Arab Socialist Union. A secret cabal of judges loyal to the government was deployed to foment dissension among judges and rig the March 1969 Judges Club elections. When Nassar and Refai’s slate won despite the spoilers’ best efforts, it was the last straw. On August 31, 1969, Nasser decreed a quartet of laws under the rubric “Judicial Reorganisation” by which he instantaneously fired and then re-hired the nation’s judges minus 189 who were either transferred to administrative posts or retired early. Nassar and Refai were among the 189. This second episode stands in judges’ collective memory as “Madhbahat al-Qada’” (The Massacre of the Judiciary). Yet there was a fascinating silver lining. One of the four laws specified a new court organ called the Supreme Court (al-Mahkama al-Ulya) designed to centralise and monitor the country’s dispersed judiciary by monopolising judicial review. A retired minister of justice named Badawi Hammouda was reluctantly pulled out of quiet retirement to head the toothless new body, “a political court” as judges derisively panned it at the time. Just ten years later in 1979, they rose to its defense in its new incarnation as the Supreme Constitutional Court, a powerful and central player in the Mubarak years under the presidency of Awad al-Morr.

A tribute to Mumtaz Nassar: the young law student who came of age watching his father testify at the Badari trial and listening to the rousing defense speeches of Fahmi and Mumtaz would become not just a formidable advocate of judicial autonomy, but a thorn in the side of two presidents. Defending the Judges Club against the Nasser regime’s legal henchmen, he went on to become the leader of parliamentary opposition to Anwar Sadat. Nassar prefigured judges’ face-to-face encounter with electoral fraud in 2000, not as an observer but as a candidate. His supporters faced off with police in Assiut in a tense and potentially bloody battle in the 1979 elections; only a personal phone call from Sadat himself ended the standoff, Nassar won by a landslide, and became an opposition legend, following in the footsteps of Mustafa Mare’i and inspiring the likes of Mahmud al-Qadi.

As for Yahya al-Refai, he’s alive, refreshingly outspoken, but sadly less well, though his wry sense of humour is as sharp and cutting as ever. His lawsuit appealing his dismissal was accepted by the Court of Cassation in 1972, and he resumed his judicial career, becoming president of a Cassation Court circuit until his retirement in the 1990s. In 1986, at the first Justice Conference which Mubarak inaugurated, he stunned the audience by setting aside his prepared remarks and calling on the president to lift emergency law, to the judges’ resounding, grateful applause (the president was furious and walked out). Refai then took up the cause of judicial autonomy, embracing the project of a new law governing the judiciary in place of the current law of 1972 vintage. It is his and his colleagues’ draft law that has gathered dust in many a ministry of justice drawer since 1991, to be taken up once again by Alexandria’s and then Cairo’s judges in 2005.

Gathering Discontent

The July 2000 Supreme Constitutional Court ruling requiring judicial supervision of elections, for the first time in Egyptian history, was issued by a slight, dapper man with piercing blue eyes and a strong resemblance to the debonair screen star Ahmad Mazhar. Muhammad Walieddine Galal is a charming, grandfatherly man who loves Rachmaninoff’s Piano Concerto No. 2 and spends his retirement days listening to it in a quiet, perfectly appointed, old-fashioned drawing room with curtains drawn against the brutal sun and crocheted doilies on the armrests. His memories as a young legal adviser in Gamal Abdel Nasser’s Bureau Technique (Maktab al-Fanni) are never far from his mind, recalled with startling lucidity, as are his school days in 1940s Heliopolis. What did one do as a legal adviser to Gamal Abdel Nasser? “There was a wonderful balcony where we sunned ourselves in the winter,” he says with an elfin smile.

The case Galal ruled on was filed by lawyer and independent candidate Kamal Hamza al-Nasharti, who argued that police interference hurt his chances in the 1990 elections. Multiple theories abound for why the case took 10 years to make it through the Court’s system (the average time to decide a case is 2-3 years), but when Galal’s ruling came down it sent shockwaves through the political system. From simply reviewing hundreds of appeals of elections results (and issuing only non-binding reports as delimited by Article 93 of the constitution), Egypt’s judges would suddenly have the power to monitor the poll. Judges and independent candidates alike hailed it as a real step for democracy, the unprecedented violence of the 1995 elections fresh in their minds (at least 60 dead and hundreds injured). The ruling party and its henchmen paid lip service to a clean vote while power brokers scrambled behind the scenes to retain their hold amidst the new conditions. Significantly, government legal tailors willfully interpreted the ruling to include government lawyers and prosecution members as part of the “judicial organs” eligible to supervise the vote.

Elections were conducted in three phases to allow the limited number of judges to travel and oversee all polling stations. While there was a very high degree of turnover between the 1995 and 2000 parliament, the 87.7% NDP majority (after the hurried scrambling of nominal independents back into the government fold) was still a disappointment. The regime was able to successfully claim victory on both counts: its international image and domestic standing were temporarily burnished by the participation of judges, and it had a healthy majority, above the minimum 2/3 required to pass important legislation. However, within the ranks of judges, the experience did not palliate but rather inflamed their discontent at executive intervention in budgetary and disciplinary affairs. Skirmishes between judges and policemen at polling stations fed gathering discontent at a litany of issues: from overcrowded courthouses to executive interference in the assignment of cases to the epidemic of appointing judges as highly paid legal consultants to government ministries (setting off a conflict-of-interest morass, especially among administrative court judges adjudicating disputes between citizens and government agencies).

Judicial discontent literally hit the newsstands in early 2003 when some opposition newspapers published Yahya al-Refai’s startling revelations of the Ministry of Justice’s methodical campaign to corrupt and divide judges. As Mubarak played up his appointment of lawyer Tahani al-Gebali to be the first woman judge and designated Coptic Christmas a national holiday, Refai exposed the dark underbelly of executive-judicial relations. The minister appoints justices to courts for as long as he wants and has powers to discipline and transfer judges, said Refai. He touched on the sensitive issue of judges’ income, describing how a freeze on their notoriously meagre salaries was complemented by a system of selective bonuses to identify pliant judges and punish upstanding ones. For the first time since the British occupation in the nineteenth century, Refai continued, the ministry has required judges to provide it with copies of civil and criminal suits against important officials, and adopted other measures to influence the outcome of high-profile cases.

Refai’s allegations emboldened other judges. Tareq al-Bishri penned a study on the various containment and intervention strategies used by successive Egyptian regimes to subordinate and curtail judges. Judges Club board member Ahmed Saber wrote a detailed, first-hand account of the rigging and intimidation he observed in the 2000 vote and published it in the Judges Club journal. Issues of judicial autonomy, self-governance, and supervision of elections were smoothly twined as judges in the provinces shared their horror stories of understaffing and overwork with judges in the big cities. Older judges sensed a palpable decline in the quality and training of new judges, particularly those entering the profession through the police academy route. In many ways, judges experienced the same pressures as other professionals: declining resources, autonomy, and pay combined with increasing caseloads, undue intervention by the government, and shocking tales of institutionalised corruption in what is widely perceived as the last institution to hold any semblance of public confidence.

Two radicalising events came in March 2004, when a thoroughly tamed Supreme Constitutional Court under the presidency of a compliant judge issued a binding interpretation of the contested “judicial organ” definition in Article 88 of the Constitution concerning who gets defined as a judge, to supervise elections. Flying in the face of a widespread consensus in the legal community that a judicial organ must be defined narrowly as a court adjudicating cases, the Constitutional Court adopted the looser definition of the term to include government lawyers and prosecutors whose loyalty to the government is part of their job description, and thus whose competence to impartially oversee elections is doubtful. Then on March 12, 3,000 judges gathered at the Judges Club for another extraordinary General Assembly to protest warnings issued by the Supreme Judicial Council against judges Hossam al-Ghiryani (see more on him here) and Ahmed Mekki, two Alexandria judges who spearheaded the boycott idea last month.

Days of Action

Egyptian judges’ action this year is thus built on real grievances festering for at least a decade, declining morale and professionalism due to aggressive executive interference, and powerful collective memories forged out of past struggles and the examples set by revered figures. But we have seen this type of activism before, at least as far back as 1968. At the same time, there is something significantly new. The executive desperately needs judges to certify the regime’s elections, most especially during this annus horribilis of intense international (read American) scrutiny of the Mubarak regime. Savor the irony: while for years the regime resisted and battled judicial supervision, it now craves it as legitimising cover after being compelled to accept it by Galal et al’s July 2000 ruling.
If judges hold fast to their ultimatum and manage to weather the surely intense government campaign to neutralize them in the coming summer months, and if the opposition boycotts the presidential “election” and exposes it for the sham that it is, then the regime will be robbed of its last pathetic fig leaf. I’d like to hear what Gamal Mubarak will have to say for himself then. He was recently quoted as pooh-pooing the nearly universal criticism of his and his father’s party’s constitutional amendment. “This is such a fundamental change that many people are still unable to comprehend that they will change things ... for years and years to come.” I suppose 3,000 some judges, dozens of politicos, thousands of students, dozens of professors, and an unknown number of other citizens are still unable to comprehend his and his father’s infinite wisdom. Count me among the stubbornly uncomprehending.